Buttarelli v Perpetual Ltd
[2013] WASCA 160
•5 JULY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BUTTARELLI -v- PERPETUAL LTD [2013] WASCA 160
CORAM: PULLIN JA
MURPHY JA
HEARD: 21 JUNE 2013
DELIVERED : 21 JUNE 2013
PUBLISHED : 5 JULY 2013
FILE NO/S: CACV 15 of 2013
BETWEEN: VINCENZA PALMA BUTTARELLI
Appellant
AND
PERPETUAL LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :CORBOY J
Citation :PERPETUAL LTD -v- BUTTARELLI [2012] WASC 512
File No :CIV 1506 of 2008
Catchwords:
Mortgagee action - Application for a stay of judgment which dismissed an application for a stay - Failure to file appellant's case
Legislation:
Supreme Court (Court of Appeal) Rules (WA), s 43(2)(g)(ii)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr E M Heenan
Solicitors:
Appellant: In person
Respondent: Talbot Olivier
Case(s) referred to in judgment(s):
Perpetual Ltd v Buttarelli [2012] WASC 512
Perpetual Ltd v Buttarelli [No 2] [2013] WASC 190
REASONS OF THE COURT: On 21 June 2013, the court made orders dismissing the appeal with reasons to follow. These are the reasons.
The court heard the appellant's application for a stay of execution of the judgment against which the appellant was appealing and also dealt with the registrar's notice to attend dated 13 June 2013, which required the appellant to show cause:
why the appeal should not be dismissed under rule 43(2)(g)(ii) for failure to obey the Supreme Court (Court of Appeal) Rules 2005 or an order made under them.
The appellant's stay application in this court
The appellant's stay application was dated 30 May 2013 and filed on 31 May 2013. In that document, the appellant applied for:
a stay of all orders made including costs on 17 May 2013 by Justice Corboy on CIV 1506 of 2008 to allow stay of these orders until after appeal CACV 15 of 2013 has been heard and determination made …
The orders made by Corboy J on 17 May 2013 read:
1.The [appellant's] application for a stay/suspension order pending the determination of her appeal by undated chamber summons is dismissed.
2.Paragraph 4 of the orders made by Justice Corboy on 26 March 2013 and 16 April 2013, be varied so that each of paragraphs 1 to 3 of the orders are to take effect at 4pm on Friday 7 June 2013.
3.The [appellant] pay the costs of the application for stay application to the [respondent] to be taxed if not agreed.
The effect of par 2 was that the dismissal of interim suspension orders, which had been granted at an earlier time, would be set aside as from Friday 7 June 2013.
The appellant's stay application before Corboy J
In May 2012, the appellant applied to Corboy J for a stay or suspension of a judgment of Master Sanderson dated 11 November 2010. By that judgment, the master ordered the appellant to deliver up possession of a property (Bedford property) which provided security to the respondent under a mortgage, and to pay the respondent $376,738.87, plus interest (Judgment).
A Property (Seizure and Delivery) Order was made on 21 December 2010 pursuant to the Civil Judgments Enforcement Act 2004 (WA) requiring the appellant to deliver up possession of the Bedford property: Perpetual Ltd v Buttarelli [2012] WASC 512 [7]. It is unclear what happened following this, but the respondent applied for a further Property (Seizure and Delivery) Order in February 2012 and was granted that order on 9 February 2012: Perpetual Ltd [7].
In May 2012, the appellant made her stay or suspension application. The appellant claimed that $155,000 of the loan amount had not been money she applied for, and that the loan contract had not been signed or authorised by her. The appellant alleged fraud on the part of a person who was a servant or agent of the company which prepared the loan application on behalf of the appellant. The appellant claimed that she was not aware of the loan or the mortgage over the Bedford property: see Perpetual Ltd [9] - [10]. The appellant contended before Corboy J that her application for a stay or suspension order should be granted in order to allow her to commence fresh proceedings to set aside the judgment of Master Sanderson for fraud or to appeal from the judgment on the ground that it had been obtained by fraud: Perpetual Ltd [11].
Interim suspension order of Corboy J
On 30 May 2012, Corboy J made an interim order suspending Judgment pending the final determination of the stay or suspension application: see Perpetual Ltd v Buttarelli [No 2] [2013] WASC 190 [3]. These orders, dated 30 May 2012, were:
1.A suspension order in respect of the judgment entered by Master Sanderson on 11 November 2010 be made.
2.The suspension order shall continue until further order of this Court.
3.The matter be relisted for hearing at 10.30am on 6 June 2012.
4.The costs of today be reserved.
Reasons for decision of Corboy J dated 30 January 2013
On 30 January 2013, after hearings spread over various dates in 2012, Corboy J published reasons refusing the application for a stay or suspension order on the basis that the appellant had failed to establish that she would have a reasonable prospect of either setting aside the judgment of Master Sanderson in a fresh action for fraud or successfully appealing from the judgment if a suspension order or stay were granted: Perpetual Ltd [13]. However, orders were not made on 30 January 2013. The orders were made on 26 March 2013.
The orders of 26 March 2013
At a directions hearing on 26 March 2013, Corboy J made the following orders in respect of the matter:
1.The [appellant's] application dated 23 May 2012 for a stay of execution or a suspension order in respect of the judgment dated 11 November 2012 be dismissed.
2.The suspension order made … on 30 May 2012 … be set aside …
3.The [appellant] pay the [respondent's] costs of the application, including reserved costs.
4.Each of these orders shall take effect on 18 April 2013.
A further application for a stay
The appellant filed another application for a stay, this time seeking a stay of the orders made by Corboy J on 26 March 2013 and to 'allow an appeal to be entered and heard prior to 18 April 2013'.
At a special appointment on 16 April 2013, Corboy J made an order that:
1.The fourth order made on 26 March 2013 in this matter be varied so that each of the orders made on that date (orders 1 - 3) shall not take effect until further order of the court.
The orders of 17 May 2013
Corboy J delivered judgment in respect of the appellant's application for 'a continuation of the stay' on 17 May 2013. His Honour made the orders set out in [4] above and which are the subject of this appeal.
Despite having every opportunity to do so, and despite the appellant having sought the further stay 'to allow an appeal to be entered and heard prior to 18 April 2013', the appellant has not instituted an appeal against the Judgment. No other proceedings have been commenced to set aside the Judgment.
The appellant applies for a stay in this court
The appellant's application in this court for a stay of Corboy J's orders of 17 May 2013 was supported by an affidavit sworn by the appellant on 30 May 2013, in which the appellant deposes:
3.The reasons for this appeal are for the evidence provided in the appellant's case attached to CACV 15 of 2013, whereby my lawyer … misrepresented my facts and changed, deleted facts, misplaced and misrepresented my facts with erroneous information without my knowledge or consent and therefore I believe the Judge did not have pertinent facts in my case in order to make an informed decision.
4.These affidavits were changed by then Lawyer … after I had witnessed them and were done without my authority or knowledge at any time.
5.Evidence collated by daughter Simone Davies has now revealed that my representing Lawyer at the time …, had represented the very two main perpetrators of multiple frauds in my case in June 2010 and for which a Fraud Case is currently ensuing at this time with the WA Police Fraud Squad.
6.[The lawyer] had a direct conflict of interest and was unconscionable in his conduct by not disclosing this to me at any stage as my representing lawyer.
7.All this information of these erroneous affidavits and his representation of the very alleged fraudulent parties involved in my case [was] entirely discovered by Simone Davies after Judgement [sic] was made [on] 30 January 2013 and only after having requested the documents that were lodged from the Supreme Court List due to his treatment of me throughout the whole process whilst he was representing me.
These paragraphs are unparticularised and are therefore scandalous. Nevertheless, the affidavit suggests that the appellant still alleges fraud in relation to the loan transaction. Any basis for a stay on that basis was dealt with by Corboy J in his reasons (Perpetual Ltd v Buttarelli [2012] WASC 512). In any event, the appeal against Corboy J's orders has no reasonable prospect of succeeding in the absence of an appeal against the Judgment.
Failure to comply with the rules and an order of the registrar
The appellant filed the appeal notice in this appeal on 6 February 2013. The appellant's case, including grounds of appeal, was not then filed in accordance with r 32(2) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules).
On 10 May 2013, Registrar Eldred ordered that the time for the appellant to file and serve an appellant's case be extended to 4 June 2013, and that if the appellant failed to file an appellant's case by 4 June 2013, the parties attend before the Court of Appeal on 21 June 2013 for the appellant to show cause why the appeal should not be dismissed under r 43(2)(g) of the Court of Appeal Rules for failure to obey the rules or an order made under them. That order was not complied with.
On 7 June 2013, a document was filed on behalf of the appellant which did not comply with the rules. It was not accepted for filing. The document was then collected from the registry and nothing more was filed in its place.
Belated attempt to rely on additional documents and to file the appellant's case
On the day before the hearing in this court on 21 June 2013, a large sheaf of documents was deposited at the registry by the appellant's daughter, Simone Davies. It included a document which purported to be an affidavit of Ms Davies. It was signed but contained no paragraphs. Accompanying it was a bundle of photocopies of documents or extracts from documents the significance of which was not explained in any affidavit or other document. The bundle of documents also contained a document entitled 'Appellant's Case'. Under the heading 'grounds of appeal' were 115 paragraphs, but none alleged error by Corboy J. It did not comply with the rules. As a result, no appellant's case has been filed.
The appellant did not show cause why the appeal should not be dismissed. As a result, the appeal was dismissed pursuant to r 43(2)(g)(ii) of the Court of Appeal Rules because of non‑compliance with the rules, and because of non‑compliance with the registrar's order. If the appeal had not been dismissed, the stay application would have been dismissed.